Thayer v. Eastern Me. Med. Ctr.
| Decision Date | 23 September 2010 |
| Docket Number | No. 1:09-CV-00019-MJK,1:09-CV-00019-MJK |
| Citation | 740 F.Supp.2d 191 |
| Parties | Kristine THAYER, Plaintiff v. EASTERN MAINE MEDICAL CENTER and Mohammed Tabbah, Defendants. |
| Court | U.S. District Court — District of Maine |
Brett D. Baber, Lanham Blackwell, P.A., Charles W. Hodsdon, II, Bangor, ME, for Plaintiff.
David C. King, Frank T. McGuire, Rudman & Winchell, Bangor, ME, for Defendants.
ORDER ON POST-TRIAL MOTIONS
Following the Jury's verdict on July 22, 2010, plaintiff Kristine Thayer and defendants Eastern Maine Medical Center and Mohammed Tabbah all filed post-trial motions. Dr. Thayer has moved for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on both counts of her complaint and against both defendants. In the alternative, she asks that the Court's judgment be amended as to Count I in order to award her injunctive relief, declaratory relief, and nominal damages against Eastern Maine Medical Center. (Mot. to Amend J. and for New Trial, Doc. No. 160.) Dr. Thayer has also requested attorney fees and costs under the Maine Human Rights Act based upon her contention that she prevailed on Count I of her complaint. (Mot. for Att'y Fees and Costs, Doc. No. 161.) In the Defendants' renewed motion for judgment, Eastern Maine Medical Center argues it is entitled to judgment as a matter of law on Count I because there is insufficient evidence to support the Jury's finding that Eastern Maine Medical Center took adverse employment action against Dr. Thayer in retaliation for whistleblower activity. For his part, Dr. Tabbah argues he is entitled to judgment as a matter of law on Count II because any defamatory statement he made regarding Dr. Thayer was privileged and the privilege was not abused. (Defs.' Renewed Mot. for J., Doc. No. 164.) Defendants' renewed motion for judgment is denied. Plaintiff's request for a new trial is also denied. However, Plaintiff's request for an amended judgment is granted, in part. Plaintiff's motion for attorney fees and costs is granted in a substantially reduced amount.
Dr. Thayer's motion for new trial on Count I, the whistleblower retaliation claim, is predicated on an alleged error in evidentiary rulings. The evidentiary rulings in question have already been the subject of a written order (Doc. No. 117 at 7-10) and the salient background will be related, below, in the discussion portion of this order. The background presented here simply provides a backdrop for the other post-trial motions. The parties have not marshaled the testimony and exhibits in support of their motions except in the most general sense and this order will not provide an elaborate recounting of specifictestimony or exhibits that the parties themselves have not brought into focus.
Kristine Thayer, M.D., a surgeon, sued her former employer, Eastern Maine Medical Center, under Maine's Whistleblowers' Protection Act, 26 M.R.S. §§ 831-840, claiming that the hospital retaliated against her for complaining about another physician's practices, resulting in her constructive discharge. She sought "back pay, front pay, compensatory damages, punitive damages, attorney's fees, interest, costs and such further relief as the court deems just." (Am. Compl. Count I ¶ 37, Doc. No. 31.) Dr. Thayer also sued Dr. Mohammed Tabbah, the physician about whom she complained, alleging defamation in the form of slander per se. (Id., Count II.) Although the Jury answered some questions on the jury verdict form favorably as to Dr. Thayer's position on both claims, the Jury ultimately awarded her no monetary damages against either defendant. (Jury Verdict, Doc. No. 156.)
Eastern Maine Medical Center hired Dr. Thayer to serve as a pediatric surgeon in the spring of 2005, after retaining her as a locum tenens in 2004. Dr. Thayer had what could be described as an acrimonious professional relationship with Dr. Mohammed Tabbah, a pediatric gastroenterologist. She reported to her chief of pediatrics, Dr. Mark Brown, that she considered Dr. Tabbah's treatment of certain patients to be below standard. There was evidence from which the jurors could find that Dr. Thayer's relationship with certain other physicians was negative and confrontational.
In late 2007, Dr. Brown requested that an Ad Hoc Committee be appointed to evaluate whether Dr. Thayer deserved some reprimand or corrective action for being a "disruptive physician." An Ad Hoc Committee formed and conducted an investigation based on Dr. Brown's charges. At the conclusion of the investigation it recommended to the Medical Staff Executive Committee that it adopt a corrective action plan. The Executive Committee did so and its plan imposed a requirement on Dr. Thayer that she engage in anger management counseling and threatened additional disciplinary action if there were any further disruptive behavior. Meanwhile, Dr. Thayer had taken a leave of absence from Eastern Maine Medical Center and chose not to return in light of the corrective action plan.
In her complaint, and at trial, Dr. Thayer alleged that Dr. Brown's decision to refer her to peer review before an ad hoc committee was motivated by retaliatory animus for her whistleblowing activity concerning Dr. Tabbah's alleged failure to adhere to the standard of care in his treatment of certain patients. She also alleged that Dr. Brown influenced or manipulated the way that the evidence was presented against her in order to cast her in a false light.
As to Count I, the claim of whistleblower retaliation, the Jury's verdict indicates "yes" in response to the question: "Do you find that Eastern Maine Medical Center is liable to Dr. Kristine Thayer for violation of the Maine Whistleblowers' Protection Act?" However, the Jury responded "-0-" in response to the question: "What amount of compensatory damages (other than lost wages and benefits) do you award against Eastern Maine Medical Center?"
The Jury was also asked to indicate whether Dr. Thayer succeeded in proving constructive discharge. If so, the Jurywas permitted to award damages for lost wages and benefits from the date of constructive discharge through the date of the verdict. The Jury's response to verdict question 2 reflects a finding that Dr. Thayer was not constructively discharged.
Finally, the Jury was asked to determine whether Dr. Thayer proved malice or reckless indifference in support of an award of punitive damages. The Jury's response to verdict question 3 reflects a finding that Dr. Thayer failed to prove malice or reckless indifference on the part of Eastern Maine Medical Center.
Neither the jury instructions nor the verdict form invited an award of nominal damages. However, Dr. Thayer made no request for a nominal damages award in her proposed jury verdict form (Doc. No. 127) and proposed jury instructions (Doc. No. 125), or during any conference on instructions.
Based on the jury instructions, the Jury's affirmative response to question 1 reflects a finding that Dr. Thayer engaged in activity protected by the Maine Whistleblower Protection Act, that Eastern Maine Medical Center took adverse employment action against her after she made the report, and that the hospital did so based on a retaliatory motive. The Jury's response as to compensatory damages, however, indicates a finding that the Jury was not persuaded by Dr. Thayer's presentation on emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and/or other non-monetary loss.
As to the defamation claim, the only issue tried related to statements Dr. Mohammed Tabbah made to Elizabeth Britton, whose young son was a patient of Dr. Tabbah and underwent surgery performed by Dr. Thayer. The salient evidence consisted of the testimony of Elizabeth Britton, her husband Adam Britton, and Dr. Tabbah, and certain treatment notes relating to the treatment of Britton's son. The evidence presented to the Jury could support a finding that Dr. Tabbah told Elizabeth Britton that Dr. Thayer had cut her son's intestines in connection with a surgical procedure and that Dr. Thayer had not actually done so. According to Elizabeth Britton, she understood Dr. Tabbah to be saying that a cut to the intestines might be to blame for post-operative discomfort. The Jury also could have found that Elizabeth Britton was uncertain about what exactly Dr. Tabbah said to her, that she just wanted to know what was going on and what she should do about her son, and that she never formed an opinion that Dr. Thayer was not a competent surgeon. The Jury was not required to find that Dr. Tabbah called into question Dr. Thayer's competence as a surgeon. Dr. Tabbah denied making any statement disparaging Dr. Thayer's skills.
Dr. Thayer sought no special damages and offered no evidence of economic harm arising from defamation. Rather, she sought a finding of defamation per se; that Dr. Tabbah made false statements related to and directly tending to prejudice or injure her in respect to her profession, for which she sought general damages for mental suffering and humiliation.
On Count II, in response to the verdict form question whether Dr. Tabbah "made a false and defamatory statement of fact to Elizabeth Britton concerning Dr. Thayer with the required degree of fault," the Jury responded: "Yes." The second verdict form question asked: The Jury responded: "No." Because Dr. Thayer did not assert a claim for special damages (specific economic loss arising from the defamation), and because Dr. Thayer had not proven defamation per se, there was no basis for the Jury to award any damages under Maine law. 1 Based on the defamation instructions, the Jury's...
To continue reading
Request your trial
-
Doe v. Fowle
...The state of Maine law in this area was just summarized by the federal district court within the past year. See Thayer v. E. Me. Med. Ctr., 740 F. Supp. 2d 191, (D. Me. 2010). The court first noted, "In [Maine Human Rights Commission v. Allen, 474 A.2d 853, 858 (Me. 1984)], the Law Court he......
-
O'phelan v. Loy
...has meaning in the context of a civil rights claim but not in this case." Opp'n at 10. 9. See also Thayer v. E. Maine Medical Ctr., 740 F. Supp. 2d 191, 194-95, 200-02 (D. Me. 2010) (noting that under Maine common law, nominal damages are presumed upon a finding that an invasion of privacy ......
-
Covidien LP v. Esch
...fees, the Court will reduce Covidien's total costs by 50% to account for Covidien's partial success. See Thayer v. E. Maine Med. Ctr., 740 F. Supp. 2d 191, 206 (D. Me. 2010) (reducing costs by 60% to account for partial success); Nat. Resources Def. Council, Inc. v. Fox, 129 F. Supp. 2d 666......